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HomeMy WebLinkAbout2004-1877.Sajkiewick et al.06-02-09 Decision . . Crown Employees Commission de ~ Grievance Settlement reglement des griefs Board des employes de la Couronne ..5- Suite 600 Bureau 600 Ontario 180 Dundas S1. West 180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 Tel. : (416) 326-1388 Fax (416) 326-1396 Telec. : (416) 326-1396 GSB# 2004-1877, 2004-1946, 2004-1947, 2004-2000, 2004-2001, 2004-2002, 2004-2003 UNION# OLB480/04, OLB479/04, OLB482/04, OLB477/04, OLB478/04, OLB481104, OLB483/04 - IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN P, /fRo - 0 Lt. Ontario Liquor Boards Employees' Union o L~'" (Sajkiewicz et al.) Union ..... ..,._"-,,,",io.,_.Io..Wo1..11I1'-" - and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer BEFORE Nimal V. Dissanayake Vice-Chair FOR THE UNION Larry Steinberg Koskie Minsky LLP Barristers and Solicitors FOR THE EMPLOYER Alison Renton Counsel Liquor Control Board of Ontario HEARING February 2, 2006. , 2 Decision The Board is seized with seven individual grievances filed by grievors Jack Sajkiewicz, Johannes Van Hezwick, Robert Heath, Kerman Katrak, Paul Dang, Doug Liverance and Donatu Ong, respectively. Since the issue raised in all of the grievances is the same, they were heard together on consent. The case was argued on the basis of an agreed statement of facts and documents filed on consent. The agreed statement of facts read as follows: AGREED STATEMENT OF FACTS The Employer and the Union (hereinafter "the parties") agree to the following facts for the purposes of the hearing and without prejudice or precedent to positions taken or arguments made in this hearing, other grievances and/or hearings, including arguments about admissibility of evidence. The Parties agree that additional information may e presented at the hearing by viva voce evidence. 1. The Grievors are employed as either Shift Leaders or Computer Operator Grade 2' s and are based at the Employer's head Office at 55 Lake Shore Blvd. East, Toronto (hereinafter "Head Office Computer Operators"). They are part of the Employer's IT Division and specifically the Production Services department and they work in the computer room. A copy of their salary and classification information is appended hereto as Appendix" A". 2. The computer room operates twenty-four (24) hours a day and seven (7) days per week. However the Head Office Computer Operators' regular work week is Monday through Friday, inclusive, for 36.25 hours per week. The Head Office Computer Operators work, on a rotational basis, on the day, afternoon or night shift. Their regular work week is set out in Article 6.2(a)(vi) which is appended hereto as Appendix "B". 3. However, because the computer room operates seven (7) days per week, there is a requirement for Head Office Computer Operators to work Saturdays and Sundays. Because these are not their regular days of work, these days attract overtime rates. 4. The department has written guidelines for soliciting overtime called Weekend Overtime Structure and Procedures (hereinafter "the overtime guideline"). A copy . 3 of these guidelines are appended hereto as Appendix "C". The overtime guideline does not set out the overtime rates for work performed. 5. The rates for overtime are set out in Article 6, which is appended hereto as Appendix "D". 6. The practice in the computer room has been to pay time and half (1 Y2) the Head Office Computer Operators' regular hourly rate for hours worked on a Saturday and double time for hours worked on a Sunday if the employee also worked on the Saturday. This is not in dispute by the Union. 7. The practice in the computer room since the 1996-198 Collective Agreement came into effect has been to pay time and a half (1 Y2) for hours worked on a Sunday if the employee did not work on the Saturday immediately preceding the Sunday yet volunteered to work on the Sunday. This is the issue being disputed by the Union 8. The Durham Retail Service Centre, which is part of the Employer's Logistics Division, and which is located in Whitby, also has a computer department that operates twenty-four (24) hours per day and seven (7) days per week. That department is staffed by Vax System Operators and a copy of their salary and classification information is appended hereto as Appendix "E". 9. The Vax System Operator's regular work week is 37.5 hours Monday to Friday. Like the Head Office Computer Operators, they work through rotating day, afternoon, or night shifts. Their regular work week is set out in Article 6.2(a)(ii) and a copy is appended hereto as appendix "F". 10. Sometime prior to the period these grievances were filed, the Head Office Computer Operators learned that the V ax System Operators receive double time when they work on a Sunday, even if it was not their second consecutive day of overtime. It is unclear to the length of that practice at Durham. Because of this information, the Grievors filed individual grievances, at Stage 2. Although the dates of the grievances differ, they were all filed in July 2004 and allege a violation of Article 6.6(a) and state "employee is to receive double time when the employee works on second scheduled day off" and request as a remedy "Two times rate of pay for all overtime worked on second scheduled day off and all retro pay. To be made whole in all respect". The amount of retro pay has not been identified. Copies of the grievances are appended hereto as Appendix "G". II. In the 1991 Collective Agreement between the Parties, Article 6.6(e) provided: Where an employee is required to work on a Sunday, provided the Sunday is not part of the employee's regular shift, the employee shall be paid at the rate of twice the regular hourly rate of the employee. 12. Article 6.6( e) was changed during the round of collective bargaining that resulted in the 1996-1998 Collective Agreement. The amended language became: , 4 Where an employee is required to work on a Sunday, provided the Sunday is not part of the employee's regular shift, the employee shall be paid at the rate of one and one half (11/2) the regular hourly rate of the employee. 13. The 1996 language continues to be in effect. 14. Until September 2003, one of the Head Office Computer Operators was Mehta Karmody who was on the Union's Board of Directors and who was on the Union's bargaining team that resulted in the 2002-2004 Collective Agreement. 15. The Parties request that the Grievance Settlement Board determine what is the appropriate payment required for the Head Office Computer Operators when they work overtime on Sundays, but not when they work on the proceeding Saturday. (Appendices omitted) The employer pays for Saturday and Sunday work as follows. If an employee works on both days of a week-end, i.e. Saturday and Sunday, he/she is paid at one and one half times for the Saturday hours and at double time for the Sunday hours. However, if an employee only works on the Sunday, the employer pays him/her only at one and one half times for the Sunday hours. The grievors claim payment at double time for Sunday hours even when they had not worked the preceding Saturday. At the centre of the dispute are the following provisions of the collective agreement. 6.6(a) Authorized work performed in excess of the employee's normal work day shall be paid at the rate of one and one half (1~) times the normal hourly rate of the employee unless otherwise provided in this Agreement. All work performed on any second consecutive day of overtime shall be paid at double the employee's normal rate of pay. It is understood that an employee is to receive double rates when the employee works on the employee's second scheduled day off. 6.6(e) Where an employee is required to work on a Sunday, provided the Sunday is not part of the employee's regular shift, the employee shall be paid at the rate of one and one half (1 Y2) the regular hourly rate of the employee. 5 The union relies on article 6.6(a), and specifically the last sentence therein. Since the grievor's regular work week is Monday to Friday, counsel points out that Saturday and Sunday are their scheduled days off. Saturday is their fIrst scheduled day off and Sunday is their second scheduled day off. Article 6.6(a) stipulates that an employee is to receive double rates when the employee works on the employee's "second scheduled day off'. Since Sunday is the second scheduled day off for the grievors, counsel argues that article 6.6(a) requires payment of overtime at double rates when they work on Sunday, regardless of whether they had worked on the preceding Saturday. In further support of the grievances, union counsel relied on the employer's practice at its Durham Retail Service Centre Warehouse, (Paragraphs 8, 9, 10 of the agreed facts) where employees in similar circumstances have been paid at double rate for Sunday work, whether or not they had worked on the preceding Saturday. Union counsel submitted that the management at the warehouse applied the collective agreement correctly while the collective agreement was contravened by the employer with respect to these grievors at its head office. Counsel for the employer submitted that, on the facts of this case the governing provision is article 6.6(e). It clearly and specifically stipulates that where an employee is required to work on a Sunday day off, the applicable rate is 11'2 times the regular rate. In the 1991 collective agreement the rate prescribed was "twice the regular hourly rate". However, starting with the 1996-98 agreement the parties explicitly changed that to "one and one half the regular hourly rate". Counsel relied on the long-standing cannon of interpretation that a specific 6 provision prevails over a more general provision. (Re Canadian WestinQ:house, (1955) 5 L.A.C. 2101 (Hanrahan). Union counsel does not dispute the cannon of interpretation relied upon by the employer. However, he points out that article 6.6(a) specifically deals with the rate payable where an employee works on his "second scheduled day off'. Therefore, he argues, article 6.6(a) is the specific provision which should prevail over article 6.6( e). I fIrst turn to the "practice evidence" relied upon by the union. It is my view that the employer's practice at its warehouse is of no assistance in interpreting the provisions in question. What the evidence discloses is that the employer had one practice at its Durham warehouse and a different practice at its head office. There is no evidence of a consistent practice. Evidence of "mixed practices' does not shed any light on the parties' intention since it fails to demonstrate any consensus between the parties as to the relevant meaning of the provision in dispute. See Re Overlander Extended Care Hosoital, (2002) 105 L.A.C. (4th) 310 (Germaine). In Re Gerrard, 2908/02 (Dissanayake), application for judicial review dismissed Ont. Div. Ct. May 21, 2004, I was faced with a similar situation as set out in the following passage at p.5: I agree that article 7.6 read by itself, appears to apply to the facts before me, in that it does not explicitly qualify the entitlement to employees not included in the schedule or to unexpected "call-ins". However, the diffIculty is that on a plain reading, article 7.4 also is applicable to the facts here. If article 7.4 is applied, the grievor is entitled to double time only for the actual hours worked. If article 7.6 is applied, on the other hand, he is . 7 entitled to his regular daily hours at double time. The latter provision confers a greater benefit than the former. At pp. 5-6 I reasoned: In the face of this apparent contradiction between two articles, one must look for an interpretation which is reasonable and makes more sense. Both articles cannot be applied at the same time because they lead to different results. It must be noted that premium payments for working on a paid holiday represent a recognition of the inconvenience and sacrifice resulting when an employee, who otherwise was entitled to take the day off, agrees to work. Extending that same rationalization, it makes very good logic, that greater the inconvenience and sacrifice, greater the monetary reward should be. On that reasoning, I prefer the employer's position. Where an employee who was not scheduled in advance to work on the holiday agrees to work on that day at short notice, the inconvenience and sacrifice would generally be greater. The employee may, for instance, have to cancel plans he or she had already made for the day. He or she may have to make last minute arrangements such as for child care. In contrast, an employee who was scheduled in advance would have always planned to work on the holiday. The inconvenience and sacrifice, if any, would be less. Thus, it is logical that the parties would intend that the former employee be rewarded with a greater premium than the latter. In dismissing the grievance, I concluded at p. 7: The interpretation advocated by the employer resolves the inconsistency between articles 7.4 and 7.6 on a reasonable and logical basis. On the other hand, the interpretation urged by the union, in effect, renders article 7.4 redundant. In the circumstances, I prefer the former interpretation. Similar reasoning applies in the present case. The premium payment for overtime work has two main purposes. First, it rewards the employee for the inconvenience and sacrifice he makes by working on what would have been his personal free time. Second, it serves as a disincentive to the employer against engaging employees to work on their days off. As I stated in Re Gerrard (suora) the logic of "greater the inconvenience and sacrifice, greater the monetary reward should be" makes very good sense. - 8 If the union's interpretation is accepted, that rationale for overtime premiums falls apart. To illustrate, assume 2 employees X and Y have Saturday and Sunday as scheduled days off. X works on Saturday only and receives pay at 1 Y2 times. Y works on Sunday only but gets paid at twice the rate. Union counsel, upon being questioned by the Board, could not explain why Y's sacrifice by working on the Sunday should be worth any more than X's sacrifice by working on the Saturday, since each had sacrificed one of their two scheduled days off. It does not make sense that the parties would intend to bestow a greater reward on Y, when the inconvenience and sacrifice he suffers is the same as that of X. Adopting the union's interpretation would render article 6.6(e) redundant. That is a result that must be avoided if some other reasonable interpretation is possible. In my view, both provisions, articles 6.6(a) and 6.6(e), are capable of being interpreted and applied in a reasonable and rational manner. In my view, where article 6.6(a) refers to "when the employee works on the employee's second scheduled day off', it envisages that the employee has already worked on a prior day off. The words were intended to mean, "the second scheduled day off the employee has worked". The preceding sentence in article 6.6(a) stipulates that double time is payable where an employee works on any second consecutive day. That recognizes that working overtime on a second consecutive day involves greater inconvenience and sacrifice, and therefore merits greater reward. Similarly, the last sentence is a recognition that where an employee works on two days " ' 9 off, whether consecutive or not, working on the second of those two is more onerous. In other words, working on any day off involves inconvenience and sacrifice. Therefore, the employee is rewarded with pay at 1 Y2 times. However, where the employee works on an additional (second) day off, it requires even greater inconvenience and sacrifice. Therefore the second of the two days off he works attracts a greater reward than the first day off he works. That interpretation gives efficacy to that provision, and also avoids rendering article 6.6( e) redundant. It follows from the foregoing interpretation that where, as in the present case, employees only work on the day off Sunday, the governing provision is article 6.6(e). It requires payment at 1 Y2 times for that work, and the employer has complied with that requirement. F or those reasons, all of the grievances are hereby dismissed. Dated this 9th day of February, 2006 at Toronto, Ontario Nnn1l~s~r7"i:J--!- Vice-Chairperson